Opinion
No. 10–P–1242.
2013-07-3
COMMONWEALTH v. Gary A. STONE.
By the Court (KAFKER, GREEN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Gary A. Stone, appeals from his convictions on two counts of rape and on one count of indecent assault and battery, and from the denial, without an evidentiary hearing, of his motion for a new trial. He contends that newly discovered evidence and ineffective assistance of counsel require a new trial. The motion judge carefully and thoroughly examined the defendant's proffered evidence and concluded that it was not credible, not material, and was reasonably discoverable at the time of trial. See Commonwealth v. Sena, 441 Mass. 822, 830 (2004); Commonwealth v. Kobrin, 72 Mass.App.Ct. 589, 612–613 (2008). The judge's decision on this issue is well reasoned and within her discretion. “The motion judge may properly determine the issues raised solely on affidavits, ... the credibility, weight and impact of which are also entirely within her discretion, even if she did not preside at the trial....” Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 551 (2002), citing Commonwealth v. Stewart, 383 Mass. 253, 259–260 (1981). See Smith, Criminal Practice and Procedure § 41.36 (3d ed.2007).
The defendant makes no separate argument with respect to his direct appeal.
The defendant has not made a showing that “reasonable pretrial diligence would not have revealed” the purportedly new evidence prior to trial. Commonwealth v. Shuman, 445 Mass. 268, 274 (2005). Jamie Beauchemin was significantly involved in the events preceding the rape and, though Beauchemin was not called as a witness at trial, testimony by other witnesses concerning her involvement was a prominent feature of the trial evidence. In fact, trial counsel had interviewed Beauchemin prior to trial, and could readily have determined that Lynne Dent, Beauchemin's sister, who attested to having known the defendant for several years, was present at the bar that evening. In addition, the motion judge noted that Douglas Keller “claims to have known the defendant for years and the defendant was apparently seated close enough to Keller for Keller to overhear the content of the defendant and [the victim's] conversation.”
On the contrary, at oral argument the defendant conceded that his trial counsel had been reasonably diligent in seeking out eyewitnesses.
Even if the proffered evidence were newly discovered, it would not warrant relief. Beauchemin's previous statements differed significantly from the account in her affidavit; the motion judge relied in part on this “inexplicable turnabout” in discrediting her affidavit as “unreliable and suspect.” Keller's affidavit was inconsistent with the trial testimony of both the victim and the defendant. Dent's affidavit barely mentioned the defendant, and the motion judge ruled that her statements would be useful primarily for impeachment and “[e]ven if credible, Dent's information adds nothing of significance to the defense.” We discern no error in the motion judge's conclusions that the proffered evidence was reasonably discoverable prior to trial, was not credible, and would not have been likely to affect the outcome of the trial. See Commonwealth v. Cameron, 69 Mass.App.Ct. 741, 748–749 (2007).
Indeed, the force of Dent's testimony, according to the defendant's motion, would be to depict a rocky relationship between the victim and her fiance. However, the trial testimony of other witnesses included abundant other evidence to that effect.
The motion judge also ruled that stipulating to the unredacted SANE report did not amount to ineffective assistance of counsel. The aspects of the report the defendant now emphasizes were not a focus at trial, and given that this was a bench trial, we may presume that the trial judge was not unduly swayed by the contents of the report. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008).
For these reasons and substantially those given by the motion judge in her decision, we affirm.
Judgments affirmed.
Order denying motion for new trial affirmed.